tv U.S. House of Representatives CSPAN December 29, 2010 10:00am-1:00pm EST
that there have been some, and in terms of congressional people, sometimes they have to take off before lobbying -- some time they have to take off before lobbying. you also raised pasteurized milk. that is an issue where a lot of consumer advocates and food safety advocates are concerned. they think milk should be pasteurized because of the potential contaminants in it. there is a large movement and the country -- movement in the country that supports pasteurized milk, and thinks it is more nutritious and and healthful. host: thank you for joining us. "washington journal" continues tomorrow and friday, with a segment on regulating organic food.
if you want to watch the segments, you can find it on our side, c-span.org. we will be back tomorrow at 7:00 eastern time. have a good day. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> to night on cspan at 8:00 eastern, a forum on african- american achievements and the obama administration. q&a with london at 9:30. the jamestown foundation discussion on terrorist threats
at 10:30 eastern. >> cspan's original documentary on the supreme court has been updated. someday you will see the grand public places and those only available to the justices and their staff and you will hear about how the court order from all the current supreme court justices including the newest justice, elena kagan. learn about some of the recent developments in the court agreed that the supreme court, home to america's highest court, eric for the first time in high- definition sunday at 6:30 eastern on c-span. activist phyllis benes is on sunday. she is the author of eight books including "calling the shots." her latest is "ending the u.s. war in afghanistan." join our conversation. that is sunday at noon eastern
on c-span to and watch previous in-depth programs at book-tv.org were confined the weekend schedule. >> now i look at executive power and its limits with former independent counsel kenneth starr. this is from a conference at southern methodist university in dallas. this is just under two hours. hours. >> >> does the president have to follow and obey the laws? i'll go from my right in your left, we have kathleen
sullivan, chairman and partner of quinn emmanuel, then it david cole, walter dylan tour, our moderator is seated in the center -- walter dillon jerk, our moderator. -- walter dillnger, our moderator. and kenneth starr, president of baylor university of. somewhere in your material you have the resin is of these -- resumes of these individuals. it is a privilege for me to be able to introduce them. i could take the entire time that our panel has to tell you about everything that all of these individuals have done. rather than do that, i will tell you a little bit about what we are as a group and what the panel is as a group. we have five law professors,
three that have been deans of law schools, four that have been appellate clerks, circuit courts, three that have been supreme court clerks, we have oral arguments in a combined income of u.s. supreme court, 70 oral arguments, amazing and hundreds of arguments before the intermediate courts of appeal throughout the country. we have two solicitor general's. we have two members that have been deputy office of legal counsel for the president. we have one circuit judge. we have independent counsel and we have members of our panel that have worked with presidents starting with president reagan through president clinton, bush 1, bushii, but we have no one who
has served with obama and i probably could not talk about it anyway if they did. perhaps -- all of them have written a great many pieces. probably two are of particular relevance. we have john yew who has written on prices in command and david cole who wrote on the torture of memos and john yew co-authored that with him. i am not sure he did. he was a silent partner. last but not least, we have an actual president. we have a judge can start. -- we have judge ken starr. we will leave time at the end for questions and answers. questions and answers. in the room to go have a microphoneo my right and to my left. when walter dellinger it indicates that it is time for
the q&a's, please line up on this side and we will welcome your questions. without further ado, walter, i turn it over to you. [applause] >> it may seem strangehat we're talking about constitutional interpretation, not by judges, but by the president and his executive branch. we have become so familiar in our legal culture the thinking that interpreting the constitution is the province of judges and it often comes as a surprise to confront the degree to which the president is a constitutional interpreter and decision-maker. and it might not have been the
case if a constitutional convention have not made a dramatic change in the nature of the presidency in the final 11 days of that remarkable event that took place in philadelphia between may 17 adolescent drug the summer until september 25, 1787. the constitution is not the final draft. as the current tension took this final recess in the summer, it is the final draft of august the six, providing that the president was supposed to be a maner for congress. the presidt was to be chosen by congress and was removable by congress for maladministration or neglect of duty. the congress not allay chose the
president, but the treasurer. the gunners had the power to make war, not simply declared. -- the congress had the power to make war, not simply declared. there was no participation by the president in the naming of judges. that was the second to last drafted the constitution. then there was a dramatic change. they knew that electorates' would be popularly chosen in some fashion and that they would reflect the issues of the general public. those who favored direct election of the president by the people thought this was the next best thing. this was the one step removed
selection by the people. that gave the president an independent basis. they then talked about the removal phase so that it no longer served by the pleasure of congress. they gave the president a role in negotiating treaties and in nonating judges and nominating ambassadors. this was all very dramatic. what happened to carve this dramatic change? over the course of the summer, the national government was given extraordinary authority over all of the western land, over what to john marshall was to call all of the external commerce and a not-to considerable portion of the commerce of the nation. it was an awful amount of power, going way beyond anything
anyone had imagined, except perhaps madison sitting alone in his study inhe winter of 1785. going on beyond anything anyone would have imagined in this convention. the president w created, not beench as a manager as had perceived in the early days of a convention. there is no even paint -- there's not even need to stress that in the constitution. by the end, they wanted a strong and independent branch of government. and you have a president that is his own constitutional officer,
not an employee, not a staffer. that has led the president to make and had the obligation to make their own determination of congress. of this, ever-present has to interpret the -- obviously, every president has to interpret the constitution. a president, in the absence of a cut military judgment, has to make his own judgments about how discipline in the troops and what the powers would be. one question we will be addressing is one in which congress has said that the limits of the president's authority is gone. -- what the limits of the president's authority is gone.
-- with the limits of the president's authority is on. there has been done and remarkable defense in the supreme court that the president ignored an act of congress and discharge the postmaster without the consent of the senate as required by congress. the president declined -- and the supreme court found it and remarkablehat the president had not done so. there has been a debate about the degree to which the president should show deference to congress even though his ultimately has to make his own decision, particularly on fighting a war on terror for the president decides acts of congress that were in fact constitutional while claiming that ty were unconstitutional.
that is the matrix of issues. there's one more recent one. when is the president authorized to tell his attorney general to tell the supreme court tt it ought to strike down an act of congress, for example, don't ask/don't tell, that the present is complying with, but he believes to be unconstitutional. what can you tell your court about your position? what is the duty to defend? we will finally start with a president, kenneth starr. >> thank you, walter. it is good to see so many friends. let me begin with the text. i will come to the oath of office. article 2, section 3 in numerates the powers of the president. one of those critical powers is
"he shall take care that the laws be faithfully executed." the oath of office, set forth in article 2, section 1, and here's the of "i do solidly swear or affirm that i will faithfully execute the office of the president of the united states and will to the best of my ability preserve, protect, and defend the constitution of the united states." taken those two together as well as the funmental bedrock concept that ours is a system of laws and not a person's, the will of the people as manifested in law, what was called the offending forms of justice, which expressed themselves in law, not in philosophy, not an ideology, but what is it th the law. woodrow wilson, as an academic at princeton, wrote that the
book " the president is accountable to dhahran, not to newton. government is modified -- countable to darwin, not to newton. the government is modified and shapes the pressures of life. when asked, the president included be law -- into we did law.aw -- fiftintuited the the lincoln presidents say, to a certain extent, took the president say, called to serve during what turned out to be a time of war raises in my mind the most critically clair
dimension, intentional, willful disobedience by the president to a clear norm. i know what t law is and i simply will not obey it. it seems to me that a way of , think of lincoln, perhaps think of wilson, perhaps others who have taken the law into their own hands. it way of thinking about it is to draw from analogous pollols f law. we know through the case law that there are existence circumstances, getting a warrant, having probable cause, benzidine circumstances -- eggs and circumstances -- exigent
japanese-americans during world war ii. other cases held the back of the fact. i third and final point, in the midst of all of this, which should be the role of those of us who have been privileged to serve as their predecessors and successors in the just department? at its best, the justice department will really be the conscience of the presidency. the justice department will be filled with great lawyers who will be holding up yellow cautionary signs. they will be flashing red lights. we saw the stop sign and we saw that in connection with the internment of the japanese- american community. one of the great heroes of that losing battle was francis
biddle, the attorney general. in his memoirs, confirmed by others as well, he fought very valiantly that did not resign, saying that this cannot be -- this should not be -- in a free society -- the grounds are not there for this. one arena to serve those rule of law values, the role of the attorney-general and those called upon to serve in the justice department, it is extremely high in terms of the values of the conscience of the presidency and fidelity to the rule of law. when congres time and again, came forward with a legislative veto, this was a
pro-good government reform on the hoover commission for the reorganization of the government and ordained by result. one arena that was suggested was the legislative veto. then reagan referred to it in a couple of speeches in terms of getting control of bureaucracy. but once he took office and advised by the office of legal counsel, advised by the attorney general of the united states, the president of the united states did a vehicle but and repented his -- did a mia culpa and repented his position.
the justice department told him it was unconstitutional. that to me is one of the great roles for e justice department to play in assuring, as best we kind come in a perfect world, president of fidelity to law. >> who have some people on this panel, kathleen, who celebrate the president's fidelity to his oath to uphold the constitution and his decision to subordinate the obligation of constitutional over statutory law. over time, you have expressed some concern that those in the executive branch have gone too far in asserting the president's authority to do this. how can you defend such a well considered view?
[laughter] >> i have not worked in the justice department. to work in the executive branch has no doubt steered the experience of my fellow pan members for seeing the need for presidential action. maybe it is the perspective that one takeshen you're in the moment of crisis. i would like to refocus us perhaps tohe theme of this conference, the role of the courts. when u.s. the question, does the president need to take emergency steps, does the president need to act without prior or clear authorization by law or treaty to protect the homeland, does the present have to act with the zeal and dispah and to invoke predecessors from jefferson to lincoln to rsevelt as the source of authority?
>> presidents from both sides, residents want to maximize the power of the president to protect the interests of the country as he sees it. that is why you see members of the clinton and obama administration writing memos of supporting our full executive authority just as much as members of the reagan and bush and w. bush administrations.
i don't think the constitution has troubled the wartime president. biddle had stated this. the supreme court struck down the act that exceeded executive authority and it lacked legislative authority and they did so at a time when his approval ratings were around 22% a court may be able to stand up to a present that is not that powerful.
the accord smacked a lincoln for a writ of habeas corpus, they did not do so until after the war had ended. the court may stand up to the court when the president is perceived as weak but harry truman was a different story. he did not think the court was right. he went to a dinner party at just as black's house soon after the this is a boarded -- at justice black's house. he said the conversation was a little step at the end of the evening after libations, truman said to black, "well sir, your law is no good but you're bourbon is." [laughter]
you might ask what about the congress? the framers, notwithstanding the greater shift toward presidential power, they went from a pure agent/manager vision to a vision of executive leadership at a police separated subbranches of coequal status. the single most important principle with respect to the framers was that legislation must constrain discretion. congress must constrain the president heard the president will faithfully execute laws. they have to happen and trees -- antecedent source and that must be the congress. some of the features that the framers thought is that congress
would be a great restraint on the presidential powers. the concern was maximum with respect to military and foreign affairs. we think today that the president needs more power. how can you have a multi-member body that takes time acting in military and foreign affairs? the framers believed that congress would play a role and constraining the president. it is from the pre- constitutional history. the declaration of rights from parliament in 1689. it is the raising or the keeping of a standing army not allowed unless it is with the consent of parliament. i don't know if you read the declaration of independence allowed every july 4, but it is a tradition i tried to enforce with limited success. [laughter] one of the most stirring lines
in the lead to many of grievances against the king is that he has kept among us in times of peace standing armies without consent of our legislatures. his rendering the military independent of civil power. in pre-constitutional practice, that reflected these principles, that the legislature must constrain the executive even with respect to military and foreign affairs. that sounds a good and congress will constrain the president, you might said. the framers did not imagine and
had no expectation of that we would have the party system we have today. the party system has radically undercut the capacity of congress to constrain the president. the fidelity to one's party will trump the fidelity to one branch. congress will act more as two fighting collations whose loyalty -- coalitions whose loyalty will run to their own president and congress, because of the unanticipated power of the parties, has undercut the ability of congress to constrain the president. the behavior of congress in the wake of 9/11 has illustrated the point. congress has not stood up to the president meaningfully every respect with respect to exercise the discretion of the war on terror if you can call it that, it debated the initial u.s. patriot act a matter of days. it made substantial changes in
the powers of surveillance over domestic conduct of the war on terror. it eventually ratified enter the supreme court struck it down, president george w. bush's in improvisation of military tribunal. the court struck that down and said congress had violated the right of habeas corpus clause, the suspension of the red clause by suspending the rest of habeas corpus where it was applicable and not providing a substitute. congress has not meaningfully done one thing to try to embody the framers vision that the executive should be subordinate to legislation. legislation should be superior to discretion. the texas to the court. -- that takes us to the court. there is a systematic way in which the court and in
particular republican appointees cast the deciding vote. this is not just a partisan bank records as institutions have constrained the president in a remarkable series of decisions. the decision that the improvisation in the detention system at guantanamo exited due process -- exceeded due process or that military tribunals were not authorized by geneva convention. there were a number of justices that bought the authorization for the use of military force which authorized the war in afghanistan did not extend to the homeland. there is a great line in one case where one of the concurring opinion says that even though the president is commander in chief of the military, it does not make and the commander in chief of the economy. because the commander is presidency to the military, he is not the commander in chief
all law enforcement systems by which we gather information. with respect to all of these issues to do with detention and tribunals, the supreme court has systematically said no to assertions of executive power and said no to assertions of congressional power to authorize the executive power that the court said was beyond the protection of the rights of the constitution. that is a remarkable story. there are many countries in which the courts would not be able to stand up to the executive at all because the courts are thought of as a thinly veiled rubber stamps for executive power. it is a remarkable story of judicial independence. there is obedience to these decrees. the great justices stevens who does -- who retired this year said he has the ability to have the courts decrease obeid.
yed. the congress was intended to play a role but they cannot and the modern system of divided party government. congress will always defer to the president. the courts have been powerless to stop expansions of invisible domestic surveillance at -- practices. is because of a kind of executive privilege called the state secret privilege. the state has not gone far to reach the approach that presidents starr referred to
earlier. corporate executives can engage in business judgment and two lots of things but the disclosure rules of publicly traded corporations force information out and to the public about the basis on which those discretionary decisions have been made. what is missing from the system if we think the executive should have this managerial freedom is that kind of disclosure and transparency and the court does not force that issue. that is one area where they have not gone far enough. in a nutshell, i am eager to hear later from my fellow panelists. i am much more original list on this than john yew. [laughter]
>> i would like to put john and to david cole whether there was an extravagance of presidential claims during the presidency of george w. bush that was not coextensive with what had come before. everyone agrees that a president has the authority to disobey some laws passed by congress. otherwise, with respect to some kinds of laws, there would be unconstitutional laws -- there would be unconstitutional laws in place forever. if the laws says the president cannot fire a cabinet officer and president complies with that, it will never be tested. there is no way a case will ever get to corporaturt.
i think any subsequent president should consider this unconstitutional. only by disobey paying can you get a judicial test. we too often cite cases like lincoln, the suspension of habeas corpus is provided for by the constitution. it shall not be suspended unless in cases of rebellion or invasion. this was clearly such a case. it does not say who shall suspend it. it is still silent on the question. what is clear about lincoln's assertion of power is that he did it publicly. it was no secret. while asian of federal law.
-- it was no secret violation of federal law. lincoln complied with the congressional limitations on the power. it is important to distinguish this. the president has a lot of inherent power to act when the only claim against his acting is it would be wrong. there is no law on this subject at all. presidents can engage in lots of things in a different meaning of inherent power is the authority to resist an act of congress wants congress has decided it has placed a limitation. by some accounts including mine, the refusal to comply with the foreign intelligence surveillance act, for example, and acts of congress were a
violation done in secret without justification. we've got people here who are fully able to debate that. [laughter] >> thank you very much. i would like to thank judge callahan for inviting me to appear. she did not tell you but the last time she asked me to appear on a panel, i could not make it because i was detained at the airport. this was before the tsa had the machines to see what i had my body. [laughter] i hope you will bear with me. i have trepidation speaking before an audience full of appellate judges and lawyers. i don't actually appear in court. i hope never to appear in court. [laughter] i told my wife i was going to speak before some 300 judges and appellate lawyers.
thank you very much for the invitation to speak. i am not very good at appellate arguments. i will be very direct. if that a is allowed. [laughter] the first point i want to make is that in many years of my life never to disagree with kathleen sullivan kathleen is right. she is the better originalist than i am and i can testify that before congress whenever she comes up for confirmation. i think what has happened with the presidency is that the framers establish certain principles with executive power and thought that the congress would interact. the constitution created a weak presidency on paper. as america grows in its position in the world and gets involved
in wars and they come to have an empire which they thought was a good thing, the presidency's powers have ground. that was the branch of the constitution that was designed to meet those circumstances. if kathleen or right, why should we have a presidency? why not just let congress create the agency that needs to carry out its functions? the framers rejected that idea. the reason we have an executive branch and the reason they created a presidency was that there would always be a branch of the government in existence which could react quickly and swiftly to unforeseen circumstances. they said this in the federalist papers. the congress and legislatures cannot anticipate the future so you need a branch of government that can respond to immediate circumstances. the example they give is war. alexander hamilton said this
that the one best example of where you need one person in office at the time something happens to act immediately is what he called the management of war. that was an example of a superdelegate. -- that was an example they gave. the framers thought congress would be the dominant branch and most of the time the president would be carrying out their directive accept for emergencies and war. that is why we have the presidency and the first place. -- in the first place. the presidency is also an independent branch. because of that, the courts and congress have no right to tell the president how to interpret the constitution and a more than the president has a right to tell the other branches how to interpret the cobb -- constitution. if you go back to marbury vs.
toison -- you don't have pull out your copies, kenneth starr is pulling out his copy -- i don't have my copy -- i don't have a secret codex -- [laughter] in that case, the supreme court says we have the power of judicial review not because they are a superior branch or final decider but because they have to interpret the constitution in the course of deciding cases between parties. it is a natural part of deciding the plaintiff or defendant winning very the other two branches have to interpret the constitution when they do their jobs. when congress passes a law, hopefully they think of the constitution and down to an act unconstitutional laws. when the president enforces the law, he or she has to figure out
what that law means. he or she should not enforce unconstitutional laws either. the constitution says that the president is charged with faithfully executing pilaus. the laws. what if they law and the constitution tell you to do two different things? this is not some wild idea that the bush administration came up with or that i in particular, where it. i have come up with lots of wild ideas that this is not one of them. [laughter] residents from the beginning have followed this logic. when thomas jefferson came into office, it was a crime under the sedition act to criticize the government. john adams love this law,
obviously. thomas jefferson came to office and released from jail everyone who had been convicted under that law anti ordered u.s. attorneys around the country to drop all prosecution under the law. he said the courts have upheld below and they think it is constitutional and they are entitled to do so. i think the law is unconstitutional and i am allowed to pursue that do and i performed my constitutional function. i think the president has every right to refuse to carry out unconstitutional criminal legislation when he or she decides to prosecute or not. >> what is the fundamental difference between a president declining to enforce law which places constraints on others and violating something that jefferson did not do -- violating a federal criminal statute that makes what the president is going to do a
crime? aren't those different situations? i think that is a great question. the second example is lincoln. on like jefferson who was passive and refused to enforce unconstitutional laws, like in during the civil war took actions where he actively did things which violated the supreme court precedents of the day. it is not the things he did the beginning of the war like raising troops without congressional operation and taking money out of the treasury and suspending habeas corpus. lincoln refused to release a confederate spy in direct contradiction of orders. think about the emancipation proclamation. the president of united states freed all the slaves in the south as part of his commander- in-chief power.
we are all lawyers. do you remember what the government supreme court president was in 1863? it was dread scott, still below of the land in 1863. lincoln actually acts quite inconsistently with supreme court president when he freed the slaves. he did it under his executive authority. people are dead lichen was a dictator. i think he was acting under his powers as commander in chief during war. the third example is fdr in the years leading up to world war two. congress passed a series of neutrality act. i am picking presidents on purpose. i am picking presidents who people think our great presidents. [laughter] there is a tie between success in the office and a broad view
of your powers. they made it illegal for the united states to assist any parties in the fighting. these are just a part the people that president roosevelt started sending airplanes, destroyers to britain. he was asked if he was violating the neutrality act and he would say that these destroyers are so old, we don't need them anymore. he ordered the navy to start escorting convoys across the atlantic and start attacking german submarines. all of that was in violation of the neutrality act. all of these cases, i am glad that roosevelt, lincoln, jefferson did what they did it i did they did it in the best interest of the country and they did not do it to grab power. it was better for the country that they did what they did.
i wish they had done it earlier in those circumstances the last point is the bush administration and the policies of the last 10 years. i never disagree with kathleen sullivan. i fully agree with her. i worked as an aide in congress to senator hatch about 15 years ago. i think congress does has ample constitutional authority to stop the president from doing anything he really wants to. it has the power of the purse. i quite agree with her that you have seen the congress does not want to do it. if we want to change of administration policy in congress, it was not that hard to do it. it was a question of political will, not constitutional power. the policies that the bush administration pursued like surveillance, interrogation, military commissions, habeas
corpus detention, this was exactly why the presidency was created. we had an attack on 9/11 that was unforeseen and unlike anything we had before. the president immediately reacts and response because he is the person in office at the time. he tries to figure out how to adapt our system to this new kind of war where we are not fighting a nation state. we are fighting a state list terrorist organization. congress can come in and turn around those policies of the want to and they don't. congress tried to eventually support the president's authority. the court stepped in and struck the policy down. seen't think what we have is in line with historical example when compared to other presidents during wartime. bush tried to work with congress but the constitution gives him the authority to act first with the initiative and the system
gives congress and the courts their shot at the issues immediately after the fact. if you see a situation where people think that the bush administration went too far or the obama administration went too far, they are but the congress and the courts have ample authority to stop them if they want. the consequences for the country have been battered when those branches have -- at have beenbetter windows branch's work with the president. thank you very much. >> david cole has challenged executive power in cases he has argued before the court. he is likely to have a less sanguine view of the extreme deference to law and congress exhibited administrations. >> i can't say that i have
learned never to disagree with john yew -- [laughter] i want to start by thanking judge callahan for the brilliant collective introduction of the panel. i am sure it was not lost on most of you. 90% of those accomplishments in that collective introduction were judge, general, diem, president starr's. i don't know why i am here. [laughter] that was just brilliant and i will be indebted to her for that. i will agree with -- i will agree with john this respect -- everybody on this panel would agree that presidents have often, in moments of crisis, overreached and have taken matters into their own hands and
have exercised authority that might well have been questionable. the difference is in how they do it. there is a difference between doing something publicly and doing something secretly. the difference between declining to enforce a law and acting in direct violation of that law yourself. what we see when you look at the last 10 years is that the notion that there is a tie between success and office and broad visions of executive power has some counter examples. one of them as president bush. another is his immediate predecessor, president nixon.
in his famous interview with david frost before leaving of -- after leaving office, david frost asked him why he had the power to engage in a warrantless wiretap and during the vietnam war. president nixon said," in my view, if the president does it, that means it is not illegal." president night -- president nixon learned the hard way. president bush and with the assistance john resurrected that principle. it is not if the president does of that means it's not illegal. it is if the vice president does it [laughter]
if the president does it and to his is percy eived commander-in-chief authority, it is not illegal. in that respect, the bush administration's assertion of executive power to disregard and contravene law are quite unprecedented. they asserted inherent power to take initiative. in secret, they rowed opinions -- they wrote opinions that said the president can blatantly
violate laws that are directly restrictive of his actions. they did so in two context in particular. there was one on torture. they concluded that torture is something that i don't think anyone else thought torture was limited but then they said even if what is being done is clearly falls within the terms of the torture statute, the federal torture statute, that the statute cannot be applied to the president because the president as commander in chief cannot be checked by either branch of government when it comes to engaging the enemy. he decides that to engage the enemy that we need to torture them, that is his prerogative and no one can stop him. john has said that if the
president decides to cross that pet project testicles of the enemies child, he can do so. that's not true. >> if the president orders and extermination of a bill is, that would be under his executive authority. that is the kind of assertion of power we saw. it was a failure to live up to what judge dean - president starr said was the responsibility of lawyers which is to say now. . it is a crime to engage in wiretapping without a warrant. that expressly contemplates war crimes. 15 days and you have to come to
congress and get further authority. the president took the position that he can engage in this because it is engaging the enemy. a similar argument was made not in secret but publicly at least to the court, the supreme court when it came to review of the detention of enemy combatants. the government argued that it would raise serious constitutional questions if the court were to interpret the habeas corpus statute. case, they took the position that the courts could not assess
the factual validity of the government's claim that the person was an enemy combatants. justice o'connor said we certainly can, and we must under the constitution. i think we saw, under the prior administration, assertions of executive authority that really go far beyond the kinds of examples that we have seen from history. i think the lesson of history, unlike the lesson of history with respect to lincoln or fdr, will be that these are grave mistakes, that these were barriers of vision, and that this is precisely why it is critical to have a system of separation of powers with checks and balances that does not permit one man to engage in
uncheckable executive power. >> john, i will let you respond. >> sorry for interrupting. >> i interrupted you, too, so -- >> you brought it out in me. first, i actually do not think that the president has the power to act outside the constitution. i think the commander-in-chief authority is a broad power that is only triggered during wartime. i think the problem nixon had as he tried to claim a very broad authority to combat an internal security threat that was nonexistent. i think that is a big difference between nixon and a lot of other presidents, and with president bush. i think it is undeniable that we were attacked on at 9/11 by a foreign enemy. i do not think president bush made up some kind of crisis to expand the presidential power. i do not think president obama is doing the same thing, despite what some critics on the right might say.
president obama is still commander-in-chief, and we are fighting war in two places in the war against terrorism, and he is using his constitutional authority to do things, even more so and then at the bush administration, in using predator drones. the second thing is i think it cannot be the case that congress has the full authority to tell the president to do whatever it wants. could congress passed a law that made it a crime for the president to order his generals in the field what to do and not to do? is that consistent with the constitution? there has to be some core presidential power that congress is not allowed to take away. even cases like youngstown talk about it. can congress pass laws ordering the troops -- an example i am giving you is the one that triggered the impeachment crisis of andrew johnson. congress basically said the president could not direct his
generals in the field in the occupied south on how to conduct construction. i think the system worked. if congress does not like it, they try to impeach the president. they almost removed and by office by one vote. they're things like fisa and the torture statute, and those laws were not written with this kind of war in mind. yes, the president could have gone to congress to get new laws are written. there is a cost in this kind of war, because you have to reveal a lot of information in public that can destroy the very advantages you have in this kind of covert conflict. what the president tried to do was update these laws during this war and tried to tell congress what they are doing in secret sessions. obviously, that did not work very well. but it was an effort to try to adapt to a congress with what we have. and i think all presidents are fully happy to be judged on the consequences.
it is easy to say now, one might think that history will judge bush badly or it could judge obama badly. it will take 20 or 25 years to tell. i think presidents have to act in the circumstances. i do not think that bush overreacted to the kind of challenge we had, but i do not think the constitution or the law is going to give you that answer. if you want to make one based on whether it was worth it, we will have to wait and see. my particular view is it was. at the administration stops terrorist attacks from occurring in the country. i think that is perfectly fine if you want to judge it on those grounds. >> let me see if i can have you explicate a bit how this is supposed to work. in your opening remarks, he said that congress ultimately has the authority to control the president. if you take a matter like
foreign intelligence surveillance, the president is going back in the 1950's, probably the 1940's on, assumed that they had inherent authority to order electronic surveillance to get foreign intelligence, when it was not to be used for criminal law enforcement purposes. that was not the object. the u.s. supreme court, as removed from the 1960's to the beginning of the 1970's, rejected that proposition. and said that you're not exempted from the fourth amendment, because you're labeling it for an intelligence surveillance. congress then passed the foreign intelligence service incident -- for waylett -- surveillance law, the purpose to authorize foreign intelligence surveillance, to allow foreign intelligence surveillance. but if you put that machinery in the hands of the executive branch, congress thought, it is critically important to make
sure it is not misused. a special court of three judges, who will meet in an intensely secure facility from which there has never been a leak, and will be asked to authorize and demoralize the basis on which a foreign intelligence surveillance tap is actually conducted. that is why you do not wind up tapping al gore or john kerry. it may be that they approved 100% of the applications of their the attorney general and fbi agreed to put them forward, but that is because it was a great restraint. you had to go before 3 article three judges and make this submission, which was kept a part of the secret permanent record. so congress has done that this, and it takes 72 hours if it is not practical to do it sooner. i think the president needed two weeks instead of send to hours and had been told he did not have to constitutionally comply
with that in a time of great emergency. but ultimately, you have to comply when it is not ultimately imperfectible -- impractical to do so. president -- to secretly engaged wiretap, of violating the procedures set up by congress. it is only because of a leak that they even know that. i do not understand how this congressional control notion is supposed to work when a president secretly declines to comply with law. congress thought it exercised its oversight. >> look, first, i think the president has constitutional authority over battlefield and intelligence surveillance. the question is, now that we had this kind of war were enemies are infiltrating into the country, how far does that power go when it becomes law enforcement? on the other hand, the 9/11 attacks caused a huge problem for that system.
you accurately describe exactly how the system works. the problem is that you need to have a target in mind. under the fisa statute, it is written under the law enforcement mold, you have to have reasonable reasons to think someone is already a likely terrorist or in any before we can get one of the secret wiretaps. that, unfortunately, is not the problem that the 9/11 and tax stressed on us. we do not have a list of the suspected al qaeda members, the way we have a list of the people who work in the soviet embassy. right? if you wanted to surveil all the e-mails that went from afghanistan to the united states on september 12, you cannot do that under fisa, because you did not have a specific identity. this is what the president did. he had to make a choice. he could have said we're going to stick with the fisa system, and our ability to get intelligence will be very limited, or we are going to do things like try to intercept all
the e-mails coming from afghanistan to the united states the next day without a specific target. is right. the administration has to do that in secret. if you announce to the world a new law to allow us to wiretap e-mails dreams from afghanistan to the united states or the pakistan frontier now into the united states, ok, there will stop using the e-mail system within 24 hours. what the administration did, i think, was tried to figure out a way to have oversight and cooperation but in a secret. so the administration did brief the leading members of congress about what they eventually called the terrorist surveillance program and asked if there was an objection. if any one of those leaders said you're not going to do this, i assure you that the administration would have stopped. the last thing they wanted in the months after 9/11 was to have conflict between the president and congress, right after we had been attacked. there is no sort of said obvious
way to conduct oversight in public when you are conducting a war where a lot of the actions and intelligence are covert. it does not mean they cannot do it in in formal ways. if members of congress did not like it, before or after the leaks they could have cut off funding for the program, and it would have been stopped the next day. they never did. as far as i can tell, congress eventually authorized the program and has continued to fund its, it seems to me in the same robust nature that had been going on. i think the system did work though. >> if i can briefly, and, i think we have moved in this endless war, the indeterminacy of the war, into an era where we are really grappling for a scaffold keen -- for a scaffolding, a legal and constitutional scaffolding. what he suggests is there is a very wide sense of agreement, that their needs and to be some
sort of consultation -- consultation with the article one branch. the need to be some engagement to achieve that. the idea of balanced government. we do not want an imbalanced government, and overweening executive or an imperial article one branch. madison warned about the dangers of the article one branch, with the legislative branch, and we need to build in structures such as bicameral is some and protecting the presidency through the veto power and so forth. there may be a perception that and doors, to those that are not privy to the litigation, are aware of and that is the appearance of the executive unilateralism. that has been, i think, the principal complaint of the administration. one might say, well, where was
congress? and kathleen has well articulated the case that there may simply be institutional limitations by virtue of the partisan nature of the merchant political parties and so forth. i say two cheers for congress, because as a young pop on capitol hill, working however only part-time, during the days of vietnam, i heard j. william fulbright. i heard the president's stand up against vietnam. i saw eugene mccarthy make the decision or announced the decision to in fact challenged the president of his own party. really all about the war. so it obviously will come down to a position and to a situation of leadership and the sense of, you know, how important is this issue, and how much do we disagree? one of the untold stories of the last 10 years is that congress did not disagree openly, overly enough to prevent what is now
seen in retrospect as executive unilateralism. >> any comment, kathleen? >> well, i agree completely with kenneth starr and john's earlier, and, that it is a matter of political will what congress might do. and perhaps in the most recent election, some of the patterns may have been stabilized and some of the entrenchment. i would like to go back to the commander-in-chief point for a moment and disagree a bit with my friend john on the scope of that clause. i think trying to read the argument in the original constitution rather than a living constitution, you do not want to over read the commander- in-chief clause. it is often misstated as the president has the power of
commander in chief, that is that the delegation of power. all it says is the president shall be the commander-in-chief. the commander-in-chief is an agent of the congress. the original framers concern was with making sure that they did not rush out over the civilian populace, and they wanted somebody to be in charge of them. we should not over read the commander-in-chief laws as a legitimate source of this broader claims. this is my second answer to john, especially to a conception of the battlefield that encompasses not just in determinants see in time and a definite or into the future, but indeterminate see in space, no geographical or spatial boundaries. including homeland. if you want to have a living -- a living constitution perception of commander-in-chief, that is one thing. there is a set of international treaties and conventions that constrain them in that arena. but if you use the commander-in- chief power to justify surveillance in the homeland, because you say that is the battlefield, the net think we
lose all distinction between the realm of war on one hand and the realm of law enforcement on the other. one reason why the court was able to stand up to the claims of executive power in the series of cases we of talked about was that the claims of the need for urgency seemed overstated. there was the 1866 decision that said it was not permissible to have a military tribunal for yellow dog ohioans who were suspected of criminality actions during the civil war. the reason why you cannot put into a military tribunal, the civilian courts were open and there was no need for martial law in ohio. so you could have allowed the law enforcement system to proceed. i think there is a bit of that perception that the court may have had here. you cannot tell us that you needed to improvise military
commissions of were not authorized by law. when the time has take on a one- year, two year, three years, seven years -- seven years after the events of 9/11, you can no longer said that these were necessary responses to emergencies. the civilian courts were open. i wanted to push back a little bit on the over reading of the commander-in-chief clause and its extension to the homeland so long as these old -- civilian courts are open and will take care of these things, as we have seen with the most recent absence of an attempted terrorist activity that have been tried in civilian courts. one last point, the most articulate spokespeople, i think, in questioning the military tribunal system or not civil libertarian lawyers. it was the men and women of the military brats his fidelity to the geneva conventions and to the procedures of military justice i think gave them a
sense that it is important to follow procedures, both within the military system and the dividing line between the systems and others. justice stevens wrote pivotal opinions on the war on terror cases, and he was the only living member of the guard who had served. you served with great distinction in the navy during world war ii. i think that drove those decisions. i do not think the commander-in- chief clause can do quite all the work that john has attributed to it, specially not before extending notion of the battlefield to the homeland. >> on the question of the commander-in-chief clause, and there is a tremendous article by david baron and another writer, who are both within the office of legal counsel before the bush administration and recently there. on the commander-in-chief clause, looking at the history of it, concluding that the
history, in fact, quite contrary to what john suggests, has shown that congress has in very great detail regulated and restricted the way in which the president conducts wars. they say where you can fight and were you cannot fight, where you can bomb and we cannot bomb, what tactics you can use a web tactics you cannot. you cannot torture, for example, they say that. they have been saying things along those lines for our entire history. i wanted to talk about this one that story about the problems with the secrecy and is kind of checking function of whether the check comes from the courts, as kathleen has talked about, or from congress, which is rare but sometimes happens, or from the public, which also happens. that check can be dubiously undermined. here is an example, this post- updates and john leaving the
office. this is the office of legal counsel that i think should be held responsible. it is not john. his successors in the office. when the memo that john wrote, authorizing waterboarding and the like, became public, as soon as it became public, it was unacceptable. they had to rescinded ended immediately and started working on something to substitute for it. they substituted sending for it in 2004, a public memo. but at the same time, they wrote a secret memo that said you can continue to do all of the things that we told you you could do in the recent it memo that john wrote. then it came out that they had interpreted the prohibition on cruel and inhumane treatment not to apply at all when interrogating foreign suspects abroad. waterboarding is torture, maybe
can make an argument about that. you cannot make an argument that waterboarding is not cruel. or keeping someone awake for 11 hours are making them stand in full stress positions for hours on end or slapping them in the face or stomach, you cannot argue that is not cruel. so what did they say? again, in secret, it does not apply to foreigners. there is a human rights provision in the treaty that we helped draft and we signed, and we said what does not apply to foreigners. in secret. when that became public, it was the one example to that story about congress. congress did check. john mccain read the charge and almost unanimously, congress said that prohibition applies to every human being, wherever they are held. it is a human rights treaty, not a citizens' protection act. what would the office of legal counsel do?
they wrote another memo saying we have to apply this provision because congress has said we do, but none of these provisions are culet -- coral or degrading, and not even in combination. so if you keep someone up for 11 hours and slammed the repeatedly against the wall, water bore them over and over, that is not cruel or degrading. at the end of that opinion, they said, you know, we cannot guarantee that a court would agree with us on this. [laughter] but do not worry, it will not go to court. then a year later, the supreme court said the geneva conventions apply to how we treat al qaeda detainees. in article 3, there is an even lower standard -- or a higher standard, i guess, of how you have to treat detainees in wartime. they say, we do not have to worry about that because it does not apply. but it applies to what they think was right in another memo in 2007. again, in secret, say none of
these tactics are even in humane or in violation of the way countries are obligated to treat our own people. in other words, they are saying in secret that it would be perfectly legal for another country to engage in the war with us and to take our servicemen and subject them to all those tactics, perfectly legal. when matt lauer asked president bush that question on the " today" show or whatever, president bush would not answer that question. he knew he cannot answer that question. of course it would be unacceptable if done to our people. it should be an acceptable of done to any human being. the public's perception of what the law was was getting more and more restricted and we were making it clear that human beings cannot is subjected to this kind of abusive treatment. and memo after memo, they sent out, is it you can continue to
do exactly what you're doing. >> all i would like to point out is that i do not see a failure in the checks and balances between the president and congress. i think congress was fully aware of the interrogation methods that were used in continued to be throughout this time. they may not be aware of the legal justification that the executive branch might have for them, but congress has its own ability to make its own judgments about what is happening in the war on terror and whether it is constitutional or not. they have to be fully briefed before the cia can conduct any kind of covert action. congress did respect the military and its ability to conduct interrogations'. it is quite right. they did not pass a law applying those same provisions to the cia. i think congress is playing an interesting political game where they want to take some
responsibility to some areas, but they want to leave the intelligence agencies and the war on terrorism quite a free hand. if you look at the opinion polls, once i look at showed 65% to 75% approval for aggressive interrogation methods of al- qaeda leaders. that is why congress is doing what it is doing. that is why it does not actually get into the nitty gritty. they could pass a code on this issue, and i think they would rather have the executive branch go first and take the responsibility. and if things turn out badly or there's a lot of bad publicity, they just blame the president for it. >> what troubles me is that both the congress and president is when something is done in secret but it is said subsequently that eight members of congress were fully briefed, and those eight members of congress, rightly or wrongly, say we were not.
they're lying. we were not told. yes, you were. whatever the truth and that is, either way, it shows to me fell year -- failure. when you have a public law and we take a position on funding like that, in a democracy, it is not supposed to be the consent of eight members of congress. it seems to fundamentally undercut this. i am not as sanguine as the others are about the fact that congress was told or eight members was cold. if that is the public view, we should say we're going to amend the torture statute. if we cannot be specific about what we are authorizing, saying we are authorizing the president to engage in unspecified methods of data retrieval for the duration of whatever. let me throw another log on the
fire. we have been talking about when we stay out of court by saying we're just not going to comply with the law. would you do not know will not hurt you. to talk about those instances where the president is the constitutional actor before the courts and how does the president's role in those of his law officers, attorney general, solicitor general, how is that different from private counsel or others? and when might the president assert his own view? let me put a particular example as a log on the fire, one which never finally came to fruition but i think it was the single hardest question i faced at the office of legal counsel. that was in 1995. when congress passed, sometime
after midnight, an amendment to the emergency defense authorization act, that provided that every member of the military who was hiv- positive would have to be discharged within 60 days of military service. the bill passed and congress adjourned. the president was going to sign the emergency defense appropriation act. that was a given as far as the lawyers were concerned. this act was a problem. not only did groups, hiv support groups, opposed discharging members within 60 days, there was surprising unanimity of opposition to this provision by the military that thought it was affirmatively harmful.
the white house wanted the justice department, was hoping the justice department would simply say it is unconstitutional, you do not have to comply with it. and the president signed a bill knowing that this provision would not be a problem. after great struggle, i had to go to the white house to say we did not believe we could say it was unconstitutional in the sense that we believe that the court agreed with it if it was unconstitutional, if it went to court. that was the standard we had said in an earlier memorandum we had done for the white house counsel that the president could disregard the law if he believed it was unconstitutional and in good faith belief that the court would agree with that that was a necessary condition. and when acting honestly that it was unconstitutional and would not comply with lead to a judicial review the matter as it did in u.s. versus meyers, is
refusing to comply and refusing to submit it to the senate first, he got a judicial test. we cannot say, given the difference of the supreme court giving to the political branches, we thought that congress wed or that the court would very likely oppose. it upheld male-only selective service registration, for example, in deference to the military. so we cannot say the court was likely to strike it down. and therefore we believe the president would comply. but the question then became, what would we do win a lawsuit was brought by a member who was discharged? how would you be argued that it was constitutional, given the belief of the president and his senior military officers that was harmful? the simple rule of american constitutionalism is that the government may not make in a
position on your limit -- liberty unless that imposition advances some governmental purpose. it can impose needless constraints on your liberty. and the purpose being advanced here was a more efficient military. the military disagreed with that. that is what congress thought. so the general who was chairman of the joint chiefs, and secretary of defense believed that they would lose critical people who were is symptomatic, and if the world's leading middle eastern cartographer, critical skills would be lost to the military. but more fundamentally, the general felt that there were already systems in place for people who had all kinds of symptoms for illnesses, a regular protocol, but he said recent these kids all over the world. they got into trouble on shore leave. we have taken them from their
homes and farms and cities around the country. he said this is leaving our country -- you're wounded behind. we do not leave our wounded behind. he was deeply emotional about it. so the world of the president knows actually harms military preparedness. it can only be defended as the unnecessary imposition on lamberty. what we announced was that if the president would comply with it, and i am not sure that was the right decision, would comply with it, which means the first discharge would be processed, we knew it would be sued. but then we announced that the justice department, while nominally representing secretary of defense in court, would tell the court that we believe it is unconstitutional. we would not make a half-hearted defense. and we would inform congress that they might wish to secure the representation of counsel, who would argue it was constitutional. and we were going to say, are honest view is the president
believes it is unconstitutional, and in his believe, it does not advance the legitimate government goal. what the court would have done would have been fascinating. who does the court deferred to when the president, drawing upon the advice of military leaders and whatever authority as in his role or powder -- power as commander-in-chief, says he thinks it is harmful. do with the court referred to. it was going to be a wonderful test of deference to our view was that the court does not have the deference that a federal district judge does. we did that ever go to the map on it because having made the announcement, congress revealed the statue, rather than retaining counsel to do it. there are other examples. there were instances where the solicitor general declined to defend acts of congress, one of which we later successfully
defended, and it comes up more recently in the context of don't ask, don't tell and the defense of marriage act. but he is complying with it. federal benefits and not being stinted to same-sex spouses in states are marriages are lawfully recognize because of doma and the president's compliance with don't ask, don't tell. he has made the decision to comply. so far, he has been vigorously defending it. what should the president to now that he has been more forthright about his position. and keep in mind, whatever your answer is, what should president palin solicitor general do when health care comes to the floor when they are in power and having to decide, you know, whether to defend. one of the suggestions i would make is that the president gives
his honest belief. the president honestly believes that discharging 13,000 able- bodied men and women from the military is more harmful to national defense than keeping them, he therefore believes a don't ask, don't tell is unconstitutional, so why should he not tell the court that? why should the court not applaud him? this could be your first argument. >> maybe for kathleen. >> the supreme court -- yes, but it could be sullivan arguing his honesty that it is unconstitutional. but the court also hear from someone appointed as amicus curiae, whoever might want to step forward and argue full hardly. >> or send it council. there is a statute that says in
those situations, there is a mechanism. >> that is the issue. governor schwarzenegger and attorney general brown did not appeal the decision in california, striking down the proposition that once again said opposite sex marriage only in california. they did not appeal. i think they were obligated to appeal, but they could have told the court that they believed it to be unconstitutional. the appellate court should decide and not a single district judge. if there were so strong in their belief that it was unconstitutional, there shall not have been litigation. they should have just ordered state authorities not to comply. you're going to defend it in the district court or at least lodge an appeal. and in that amicus can also come in and defend it.
i would have had the attorney general saying that we believe there is a constitutional right to same-sex marriage, but we are appealing a decision which we support in order to put it before you. open the floor for consideration of what you should do when the president's view is contrary to the statute that his administration was defending. >> it seems to me that the principal value or overarching consideration is, can we keep the process open for the separation of powers to work? if you have a system in place where if the president notifies -- and there is such a system, if a statute is declared unconstitutional and the president decides i am not going to appeal it, he is obligated to notify the senate and house. they have the power to direct their counsel to appeal the case, essentially on behalf of
congress. sometimes they do, sometimes they do not. i have been in cases like that were the government decides we're not going to appeal this and notified the senate and house. they do not care either. so the case died. it seems to me that as long as you have some process in place that does not give to the president a sort of final say in a way that is a very difficult to check, and that is what i find most disturbing about the secrecy of the kind of process i was talking about earlier, as long as you make the claim publicly, it seems to me that the system of separation of powers can allow the dialogue to continue, and i do not see it is problematic for the administration is a we disagree with this lot. i was on flag-burning cases where the supreme court struck down the texas flag burning
statute. every member of congress stayed overnight to say this is outrageous and we must pass if i protection act. the bush -- was of the bush administration? >> david, i was on the opposite side on that. [laughter] >> that is right. but that was an interesting case. you defended it but in a very kind of a tepid way. [laughter] >> just because i was unsuccessful. [laughter] >> because during the debates, the congressional debates over whether to pass, the president sent in his spokesperson, who said it would be unconstitutional to have the statue. then they passed the statute that the president said would be unconstitutional. so it was not a real hard case for us to argue afterwards. senate counsel and house counsel came in and defended it. >> that makes david's point very
neatly. the office of legal counsel, through attorney general assistant, who is set to become the attorney general of the u.s., testified before both houses of congress that even if congress did all of the things that was being guided to do by the professor and others, the law would still be unconstitutional, unless the supreme court changed its mind. congress worked its will, so this poses a problem. except it does not quite intrude into the prerogatives of the presidency the way your situation did. it was our view that reasonable arguments could be made. i hope, in a non-tepid way, on behalf of the constitutionality of the flag protection act of 1989, and it really came down to the justice. texas versus johnson was 5-4.
the anti discretion law was unconstitutional. these did seek to take that into account. we worked very collaborative with a very able lawyer, michael davidson, who was counsel to the senate at the time. i think part of michael's institutional role -- we also dealt with house counsel as well. but congress divided it up, and it seemed that the wisdom and advice was really coming much more from the united states senate, for whatever reason. so we worked very collaborative lee. we being in the solicitor general's office and the office of legal counsel, to defend the constitutionality of law, even though we testified to congress that it was unconstitutional. the interesting question is what happens when there is an intrusion by congress or perceived intrusion by the executive branch into its own prerogatives. your situation really does raise that very neatly, because the congress -- the president might
very well say, based upon the advice of military, the chair of the joint chiefs of staff, this is affirmatively that for the military, we're not going to defended in court, not at all. we have kicked this back over to the senate, to the house. they can then decided. this is a very tough judgment calls. it does tug at the bedrock command to take care that the laws be faithfully executed, even if you disagree with the laws or using the the court will find the law unconstitutional, it is still the basic task of the executive branch to defend those laws and not to set itself up, as it were, as a sort of judicial department. so my final point is the just this felt very strongly on that. i remember it vividly. i remember the law court.
justice white took exception to what i think is an almost sacred practice of the justice carmen, which is confess error. we believe, based on our analysis, that this conviction cannot, in fact, stand. asian not have been brought or the conviction cannot stand, even though you wanted the court of appeals level. justice white believes strongly that that was a violation of the fundamental duty of the executive to take care that the law be faithfully executed. and you defense, we will decide whether the conviction can properly be affirmed or not. >> one small technical correction, which raises a larger point. i do not think anybody but the united states can appeal. i do not believe senate or house counsel can actually file an
appeal or petition. notification is before you. sometimes you have prevailed but the other side is appealing, so the case is already there. so they can come in and do council. but there is no authority on behalf of senate or house counsel. there is a good example of this work congress, as part of the anti-subversion mania in the 1950's, prohibited the payment of any government salary to four unnamed individuals. who were suspected of being sympathetic to forces of subversion. those four individuals brought suit in the court of claims and one on the ground that they were entitled to their governmental
salaries, that this was unconstitutional denial of due process. to single them out in a legislative enactment. the attorney general concluded, and the solicitor general, that it was unconstitutional. but they complied with the law. but they did not pay the money. even though they thought it was unconstitutional and the president said so, i believe it was passed over the president's veto. the complied with it. they cut off their salary. the individuals one in the court of claims. i read the petition recently, thinking about this don't ask, don't tell issue. the solicitor general filed a petition saying that we actually agree with the decision below in the court of claims, holding that this is an unconstitutional provision, but at the request of senate counsel, we are filing a
petition, and also because we think the final answer should come from this court. we will be telling you that we believe the decision below is correct, and we suggest to the court that it allow counsel representing the house or senate to appear as amicus. all of that happen. the solicitor general argued the statute was unconstitutional. argued it wass unconstitutional. counsel appearing as amicus curiae i argued it was unconstitutional. the court upheld the court of claims decision, striking it down. that struck me as a very good process, and i wanted to bring california into the mix. the reason california comes into the mix is the governor and attorney general in california with the federal district judge struck down proposition 8, but the judge actually held it as a
constitutional right to same-sex marriage but it violates equal protection clause of the federal constitution to deny a marriage license solely on the basis of the same sex of the partners. the governor and attorney general did not appeal that decision. there were intervenors who represented those who had supported a referendum that restored the ban on same-sex marriage in california, and they haven't abandoned -- they have attempted to intervene. it was denied after the fact. there was counsel for the intervenors that were defending the statute that they declined
to support. the intervenors -- i actually think that this case is over. this is a lawsuit brought, which shows the difficulties. it was brought by somebody who wants a license. if i apply for a hunting license from the state of california and the hunting commission denies my hunting license, and i sued them and win in the trial court in the state decides, never mind, we're not going to appeal, and here is a hunting license -- [no audio] you can intervene for purposes of mounting an appeal. you can be granted party status.
>> there is a provision, but not when you are party without that article. if nobody has a stake in the outcome to appeal, it is not there. it is said that referendum supporters, to the whole idea of the referendum to get around the existing officials, and to defend the referendum. well, they did have a right to defend the referendum. there was a challenge to the validity -- the sequence was this, the california supreme court said there is a constitutional rights to same- sex marriage under the state constitution. then a referendum was passed to overturn that and restore california law to allow a man and woman to get married only. that referendum was challenged on a whole multiplicity of ground that it was not a ballot referendum. intervenors -- supporters of the referendum were allowed to
intervene in defend the validity of the referendum, and they won. it changed california law. this new lawsuit is a federal constitutional challenge. if it accepts that the referendum was fully valid in changing california law. >> i agree with you. i guess i am at odds with president starr. i hate to do that. i think the governor and jerry brown or more than entitled to not defend the statute of the data was a violation of federal constitution. there were some things that the bush administration actually did that i agreed with. one of them was the act where the president signed the bill. he said i think it is unconstitutional, but i will sign it anyway, and then he defended it in court. it seems to be the exact reverse. if you think the bill is unconstitutional, veto it, and do not defended.
i think governor schwarzenegger is entitled to do that unless the state constitution requires them somehow to do it. >> can we go to a couple of quick questions? [laughter] >> 3 minutes. >> questions. the microphones are open. please step up to the microphone. >> i hesitate, but i have to correct judge starr on his history. i was in the white house counsel's office during the reagan administration. the wind went through the white house counsel's office, and the president was told that starr was right for once. [laughter] seriously, add a little
perspective from a very small role in the white house. i do not think the other branches -- i realize this was surrounded by judges, many of them before who might argue. some of the executive branch and other branches do not have the same level of accountability and responsibility for their actions in terms of if something disastrous happens. the person has responsibility as the president of united states. he is the only one who takes an oath that says preserve, protect, and defend the product -- constitution. an example that is not as controversial is that there were government shutdowns in the reagan administration. there was a government shutdown in the clinton administration. both presidents, and i think every president in that situation will actively disobey a fundamental propositions having to do with congress must
appropriate money. and they will pay the military, and will keep in place people whose functions they believe are vital to the protection of the country, and there will also keep the social security check going. i do not know if anybody has ever complained about that. to let judges in on a secret, it is true that presidents, at least in my experience, quite nicely, do not think judges are going to get blamed if they do sending that affects the security of the country. and it is a very, very easy to discuss these things in the abstract, to discuss the various rights that may be involved and how the bridges should all work together, but the other day there was one human being responsible for the safety of the country and preserving it, and that is the president of the
united states. lincoln said in a habeas corpus, must alas fall down so that this one can be preserved. i think we are in the middle of something that is different from anything we have ever dealt with before. it does not fit into these boxes. but however we deal with it, if there is another 9/11, if there are the kinds of things that happen that maybe we learn because some of the investigatory techniques we have used, no one is going to blame the supreme court of the united states, at least not most of the public. it is all going to go to the president. >> thank you. any other questions? [laughter] no, or statements. we actually welcome it. it was a useful commentary, and we welcome statements as well as questions. criticisms are out of order.
[laughter] that being the case, let me conclude by recalling my favorite moment of the constitutional convention. >> you were there? [laughter] >> close to it. >> to voted against it. [laughter] >> i taught the debates for seven years, so i went through with a group of students numerous times the debates on the convention. a few moments sars precious as win navy and gorham -- a few moments are as precious as when the class was asked, can anyone imagine that 150 years in, this vast continent will still be governed as a single nation? and not a single delegates rose to say they agreed that would be the case.
we have made that in another half century or more be on. during the time, we have fought and lost hundreds of thousands, marshall millions to end slavery. we have combated those on serious depression, and we managed to turn back the tide of fascism. and winning the cold war. that is no small list of achievements for any government established under in the constitution. so i think to that degree, it has served us well, and we should let the dialogue continue. thank you. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> tonight at 8:00 p.m., a forum on african-americans in the current economy and the obama
administration, with the national urban league president and the former president. at 9:30 p.m., british journalist matthew perry. the former member of parliament writes for the times of london. after that, of jamestown foundation discussion on terrorism threats in pakistan and afghanistan. that is at 10:30 p.m. eastern. watch "book tv" all this week in prime time. tonight, with your phone calls and a look back at the year in books. also from this year's national book festival, the former first lady on her memoir. then, tony blair, the longest serving labor party prime minister on his memoir. "book tv" in prime time, all this week on c-span2. >> the c-span networks, we provide coverage of politics, public affairs, nonfiction books, and american history. it is all available on television, radio, online, and
social media networking sites. find our content any time through our video library. and we take seized and on the road with our digital boss, local content vehicle, bringing our resources to your community. it is washington your way. the c-span networks, now available in more than 100 million homes. created by cable, provided as a public service. >> now, a discussion on militant movements in yemen, specific the -- specifically al qaeda in the arabian peninsula. from a conference hosted by the jamestown foundation, it is about an hour and 10 minutes. >> thank you. it is a pleasure to be here. i am an independent consultant, and the focus on north africa.
a lot of folks out there focus on north africa and the middle east or they focus on north africa and sub-saharan africa. so i only focus on north africa. i focus on about five countries, and it is a rare opportunity to be chairing a panel dedicated to north africa. it actually gives me something to do. it is a privilege to be here, and i am looking forward to referred full discussion with my esteemed colleagues. we're primarily going to be talking about al qaeda, a new group of al qaeda. it was mentioned in the opening discussions. what i would like to do for the next five or 10 minutes is framed the issue of this group and give us a little bit of an understanding of where it fits into global terrorism and into the region itself.
the broadest, and i have to make about al qaeda is that when it was formed in 2006 and formalized in 2007, we could talk about one al qaeda and the islamic group. that has changed. now we should perhaps think about 3 al qaeda and islamic al qaeda. it may sound negative or a multiplication of al qaeda, but is a positive story, and i will talk about why that is. >> one reason why the fracturing is a good story is that it is not clear there is operational coherence among the three groups that exist in north africa. there is a group outside of algiers that seems cut off from the other two groups that are operating in the sahara. if the two groups operating in the sahara do not seem to have operational coordination and.
likewise, there does not seem to be ideological coordination. it is not clear what al-qaeda in the islamic maghreb really wants. we talk about different groups like al qaeda prime, but with al-qaeda in the islamic maghreb, a team, it is not clear what their objectives are. these are good developments. the one group which need to be mindful of is led by a veteran of the afghan campaigns. he is about 38 years old. he used to be legitimate. as we will hear, he is probably more a lot mafioso these days. he is less of a terrorist, and more of a criminal. he runs criminal rings, and
seems to be primarily motivated by generating revenue, not necessarily engaging in terrorism. also it is someone who is probably a legitimate terrorist in the sahara. he is probably the most lethal. of the people that have been kidnapped and murdered -- murdered by a team have been murdered by his group to. it is mindful to keep an eye on him, but his operational capacity is not delineated. his political goals are also not clear. leslie, we have the founder of aqim. he formalized your position in 2007. he operates in the mountains outside of algiers. he seems operationally cut off from the remaining two groups. a fellow researcher was recently in algiers about one year ago and was told by counterparts
that the two groups in the sahara are no longer sending money is or -- money or weapons. he is struggling for relevancy. he made lately about a month ago -- he made a plea at about one month ago. seven were kidnapped. he recently announced that any negotiations for the rallies have to be conducted through osama bin laden. this might be news to osama bin laden, and perhaps on welcomed news. they might not want to be engaged in the negotiations for the release of seven hostages they did not have a role in taking. all of this is a fairly positive trajectory. al-qaeda in the islamic maghreb seems to be on a downward track. there are several things that could take place that might
change this. the evolution of aqim might move in a different direction. fundamentally, the biggest game changer are the increase is -- increasing linkages between organized crime and terrorism in the sahara. organized crime is taking on a number of different characteristics like drug running, from drug cartels better shuttling cocaine and through this era -- through the sahara. there is also contraband, counterfeit goods -- i do not know that phillip morris knows this, but there is a marble factory that sells cigarettes in north africa. there is also human trafficking. 150,000 sub-sahara and africans are trends reported across the sahara every year. -- transported across as air every year. this could be a very dangerous
thing. al qaeda has new revenue streams. with revenue streams, increased purchasing power. i was in algiers last week. a source there should be a picture on his cell phone of the new weapons else i in the sahara is able to purchase. i am not a military guy or an arms guy, but the alleged weapon was a dshkm? does that name anything to anyone? it was big. it is soviet. it is bigger than anything al qaeda has ever had in the past and as evidence of water revenue from drug money, human trafficking, to them, and ransom can get you. that is a source of concern. the second aspect that could change al-qaeda in the islamic maghreb is that investing -- investment in the sahara is
increasing historic constraints -- increasing. his store constraints were that there were a lot of targets. now, natural resource prices are hitting new price bands every day. the extractive industries are looking for new territories to exploit every day. the algerian government has put up new oil and gas box across its southern border. there is an encouragement for exploration of oil. mali is encouraging oil and gas exploration. there is interest in an area the was previously not explored. this creates a much richer targetted environment for aqim and is increasingly problematic. i think it is an interesting organization. aqim presents an opportunity to
examine a group that emerged 3 or four years ago, but has struggled to maintain relevancy. if we can deploy the proper policy, which might be able to use aqim as a laboratory. our panelists today -- first, we have dario cristiani, who will be speaking about the connections between al-qaeda in the islamic maghreb and organized crime. he is a ph.d. candidate at king's college in london. he is also from naples, italy, and has some historical experience with organized crime. [laughter] >> following the dario cristiani, we have jumbo korea -- jean-luc marret, will be speaking about the french responses to al-qaeda in the islamic maghreb. he is a senior fellow at the institute for strategic research
-- research in paris, and a senior fellow here, ed sais. leslie we have andrew mcgregor, who will be speaking about the security implications of the referendum for south sudan. what is interesting about andrew mcgregor's comments as a so far al-qaeda in the islamic maghreb has been based in nigeria and has oriented operations westward. what we have not seen is them go eastward toward chad and sudan. it will be interesting to hear his comments. he is a director of a consulting firm and also the editor for the global terrorism analysis program at jamestown. i like to pass the podium over to dario cristiani. please.
>> thank you for inviting me. normally i speak in boring conferences. if i should die because of the motion, you will know what is going on. [laughter] i will be brief in explaining which in my view are the three main developments relating to the evolution of al-qaeda in the islamic maghreb in the past few years. >> ok. first of all, this is, in my view, an organization which has been awakened in the past few years from the algerian efforts in counter-terrorist activities.
algeria could go government now is far better, for example, in avoiding the influence of raw materials for attacks in the country. they have been able to get a lot of us surrender sweeping the ranks of the organization, and moreover this is a development we had in the 1990's. there is a loss of consensus within the population because of the attacks of 2007 and 2008. now, the question is, is aqim a normal jihad group, where g hyde is still its reason to live, or are we facing a different kind of organization, a mafia-style organization? i come from italy, so i have some expertise on this.
well, the three main focuses of my presentation are the increasing role of narcotics trafficking, the kidnapping industry creation, and what i define as the focal -- "sa lehization." let's make clear one point. these developments are not new at all. i mean, the different explanation of groups -- they have always been involved in the narcotics trafficking, kidnapping, and were active in the sahara region. now, in my view, the new point is that this kind of activity --
they have far bigger importance for the organization. it seems there is a sort of shift in the priorities of al- qaeda in the islamic maghreb. first of all, narcotics trafficking -- this is an interesting point in my opinion. it shows that there is this ideological flexibility from this organization. islamic injunction -- they are severe with the use of narcotics, but there is no problem in traffic in these kind of things to get the money the traffic in these kind of things to get the money to carry on -- in the traffic in these kind of things to carry-on the organization's activities. africa is ideal for this because there are low-level state controls.
the sahara is a prime example of this situation. sarah is called by some analysts the new -- the sahara is called by some analysts the new somalia. there are connections with groups in latin america and columbia, which is the most important producer of these kind of things, but also in peru, brazil, and bolivia. then, the flow of drugs are arrives in africa from a very small country, but one of the most important global hubs for this kind of trade. then, they go through morocco and algeria, toward europe, if
to spain, which is the main entrance door of drugs in europe. what aqim sells -- first of all, the geographical and know how. he is a complicated area and it is hard to operate there. aqim knows the area. they can sell it protection. they take some taxes from the lows of drugs, and they can provide a protection service with the weapons they have for the narcotics traffic operating in that area. this kind of traffic is very important because it gives the opportunity also for the local games, the local criminal gangs from theseome money kinds of activities. as we will see in the kidnapping industry, this is an important
point. many times, aqim operates through local groups that have nothing to do with islamic ideology, but have more interest in getting money. they can sell hostages that they kidnapped to the organization, or they can operate as a means of transport for illegal loads. now, we're talking about drugs, but al-qaeda in the islamic maghreb is involved and other illegal activities. -- in other illegal activities. the kidnapping industry, this, as i said, is nothing new. in 2003 we had the kidnapping of 32 european tourists in this area.
now, it seems that because of the increasing presence of foreign companies in the area, and the increasing presence of the european tourists in this region, the problem with the kidnapping is is getting worse and worse because european targets are really tempting for the organization. european governments are more ready to pay a ransom to save the life of their citizens instead of, for example, america, or china. china does not really care about what is going on. [laughter] >> there is a multi-level action. local criminal games -- the
different factions of al qaeda in the sahara -- two main factions -- then, there is the leadership that we are not short is still in charge. -- not sure are still in charge. this is what i call a win-win situation. local gangs who have nothing to do with the islamic ideology can get the money they want. they can get money for their organization, their activity, and they can increase the prestige, the of the organization. then, the central leadership can claim the fact that they have kidnapped hostages or confused people -- in this used people.
they, too, are tools of the [unintelligible] with local governments in order to get the release of members of the organization of in prison, or things like that. then, what i have defined as the "salehization." again, that is something that is not new. they have always been present in this kind of a region. now, there are more opportunities to carry out what they want to do in this area. the sahara, it is defect of ground for the development of this activity because of the poverty and under-development,
the spreading of radical marriages, and the increasing he on population -- radical narrative's, and the increase in young girl population. so, we have this change which the younger population. so, we have this change of the center of gravity. but it is for the southern part of normal activities. we also have the asked that versification. there are now two factions in competition. his on one side, it is a good development, it could also be a bad development, because there could be an increase in internal competition in order to get visibility, money, and it could lead to an increasing level of attacks and kidnappings, and things like that.
we talked about factions already. [unintelligible] the risk is that these kind -- this kind of internal competition can lead different factions and different sells to look for more visibility and prestige within the organization. there are three main the developments. there was another one, but i decided to keep out of the presentation because otherwise it would be long and boring, and it is about the new role of algeria in the region because of the al-qaeda in the islamic maghreb. then, we should discuss what kind of model represents now at al-qaeda in the islamic maghreb
in the galaxy of islamic groups? is it similar to the philippines? does it look like in the in the former soviet union, which are very aggressive in pursuing these kinds of illegal activities, or are they moving toward the sort of italian-style organizations? for example, mafia in sicily with conflict that [unintelligible] this is a point that i would like to stress in terms of competition that could be a very dangerous and development for
the europeans, the u.s., and in general for the countries involved in this area. it is a bit strange. al-qaeda in the islamic maghreb is also involved in the shipment of drug loads from morocco, the southern shores of the mediterranean, toward europe. in spain, there are some italian groups that are operating as a means to transport the drugs slowly in italy, and germany. as we saw two months ago, in naples, there has been a judicial inquiry begin -- jim al-qaeda in the islamic maghreb scored a meeting with local criminals in order to get documents. it was already present in
another inquiry. so, what about the possibility of a business-oriented attack? we should always keep in mind that in europe there are all lot of immigrant communities, in which there are some members of this organization, so it poses a fears risk to the security of europe, and in general to the security of the countries of the trans-atlantic partnership. and the lack of essential coordination in al qaeda in the -- al-qaeda in the islamic maghreb, as long as they will have the brand of al qaeda, even if they do look like a normal
mafia-style group, we will always proceed this organization in a different way -- perceive this organization in a different way because of the brand. if you carry out attacks without any jihad aims -- the fact of some one the day after can claim the attack with a brand of al qaeda, it poses this kind of threat on a different level rather than the level of a normal mafia-style organization. it is really hard to understand what they want. it is also hard to understand who is in charge. in my view, these are the most important developments related to this organization, and these are the things which we should
keep discussing the next few months. that is all. see why. -- thank you. [applause] >> thank you, and dario cristiani. i would like to welcome now in jean-luc marret, who will be speaking about the french responses to al-qaeda in the islamic maghreb -- al-qaeda in the islamic maghreb. it is irrelevant topic -- it is 8 relevant topic. without further ado, jumbo. >> -- ron jean-luc marret. >> good afternoon, ladies and gentlemen. the jamestown foundation has invited me here to make a presentation on some elements of the french counter-terrorism
operations. i currently live in washington d.c. -- washington, d.c., and i am a senior fellow in a french think tank located in paris. we are a non-partisan think -- think patank. however, i would like to state at the outset that the views presented here are subjective, and i only speak for myself. the subject of french counter- terrorism is not an easy one. i say this for several reasons. by tradition, there is a lot of industry the surrounds this type of activity. then, there is the issue of transparency. france, i think, has always had this culture of intelligence that is far different from the
american one. it is more discreet on public relations and public diplomacy, also very recently the french intelligence service has acquired a spokesman. number two, but i do not have the time to work too much on that, but i think here or there, here in the euro -- u.s., and there, in europe or france, we have a small you to represent the threats. here, you are more inclined to talk about al qaeda central, and more recently home-grown terrorism, while in europe we are mostly focused on the bis global, a -- on this global local maxus, which means we are in working on this made in
france, or maybe in in germany terrorism in connection with countries of origin. having said that, i think we need to talk very briefly about the threat assessment. i should stop to say that almost every week france receives threat messages from networks, groups, or individuals. some are very explicit, such as an unidentified radical, or one emanating from aqim, and some more in direct, such as intelligence gathered from telephone conversations. information from foreign intelligence agencies always has to be elevated and verified.
france [unintelligible] it is feared that an attack will one offully occur these days. i think the french cities, like u.s. terrorism, can only delay the moment, but it is inevitable one of these days. so, french specialized services are enhancing their practices and readiness. very recently, for interest -- for instance, the french swat teams inter is a number of their trained officers to be prepared to manage a big-scale terrorist attack like my or massive
hostage-taking -- mubai, or massive hostage-taking. similar to the u.s., france seems to be a much more vulnerable target in africa or overseas, where many french nationals live. we have roughly 90,000 binationals in north africa, and around 110,000. we should also mention the strategy in french-speaking africa. for us, that is a very big thing. someone mentioned uranium. we also have would and energy interests.
it is difficult to recruit in france, and aqim is finding itself in the climate in algeria. i think the chief is more or less in the basement. there suicide bombing campaigns were not successful. hence, i think aqim seems to have failed as an obvious opportunity. having said that, i need to -- i think we need to have a long- term memory. many of these things are not new. in france, we have this colonial memory. after 1962, with france and defeating -- i should say the algerian independence,
[unintelligible] only the french keep the memory. the regular army that was mostly shaped for a big, conventional battle in europe, cold-war-oriented. it appeared again at the end of the 1980's. as a former prof. annabel that the franc -- as a former professor at the french west point, we now have a cultural and intelligence, so we have made some progress on that, but that is not so old, actually. this is not pc anymore. among my students,
[unintelligible] so, the historical approach -- it must be said that the actual problem we are talking about often stems from a very old origins. i am going to give you some examples. for instance, the sectarian road, while successfully secured only in 1934, after a dedicated military program that started in 1920 when the french regiment coming from the south met another coming from the north coast to the former spanish territory [unintelligible] another example would be the payment of ransom in exchange for a captive. you can read papers and books
from many moslem african intellectuals about that from the medieval period, right up to the 19th century. in the idea was evolves into the institution of slavery in the 19th century, where it was practiced extensively. in a way, the ransom for exchange program is justified by actual circumstances cared less say western the demography in the local area -- circumstances. let's say western the demography and a local area, or the french private companies working in the field. and, the traditional factors that i have mentioned. if we regard the two tries to be part of the problems and the
solution, then we should not forget the french monastery -- the french ministry writings. since roman times, they have been known to welcome the fugitives from all vegetarian insurgencies into the fall. there is nothing new in many ways here. there is the very recent example of mid-october, 2010, where a number of guys were judged. they were affiliated. they created a small cell, and they were affiliated to aqim. their names were typically local. from a western view, you can see that as aqim. from the local view, it was a
precious -- pritchett -- prestigious city with a lot of culture and cultural activity. in their mind, this reference is very specific and a militant reference. there is nothing global here. that is local. now, if we talk about the french counter-terrorism and the grand strategy, allow me to try to give an explanation as clear as possible here. every comparison with the u.s. has its limitations. france has created a city court major cut -- coordinator, but i do not think it can be compared to the u.s. dni, simply because it is mostly a strong -- small
sector with around 15 people and with the main role of selecting in cell coming from the switch intelligence coming from the french sources and informing -- intelligence coming out from the french sources and informing them nicholas sarkozy. we have an intelligence agency that reports to the ministry of the interior since july 1, two thousand eight -- 2008. [unintelligible] dcrg -- mrs. french national police services.
-- this is a french national police services. historically, it began working seriously on the islamic madre for two reasons. [unintelligible] according to open sources, half of the staff has been dedicated to work on aqim, and has also deployed liaison officers in algiers, and yemen. while the service is very active in collecting humans, it seems to cooperate with its mediterranean allies in the areas of linguistic analysis and translation, among other things. for the extra no activity, we
have the general direction for external security, comprising of roughly 4005 thunder people. this is the french external arrogance -- the french and external agency. they increased their capacities and technological means, respectively. this was in order to analyze various sets of data, including those passing through, for instance, the cable communication system. all in all, this is not jack bower. counter-terrorism activities can be very basic and hi-tech, sue. it must -- high-tech, too.
[unintelligible] i would not be surprised that the u.s. side is doing exactly the same, at the same time. i hope, actually. there is some french difference. that technical choice of optical imagery, and the program's announcement shows it is a strategy priority for the country. we will do some stuff for ourselves, and some parts of the program are europeanized. we do not focus on the [unintelligible] is approach the supposed to provide for a capacity?
we had a team that was able to arrest across different african countries, two bad guys that killed french tourists. that was a local cooperation. in terms of the intelligence corp., that was an action that was demanding. we have a branch, but we also have special forces from the military side that are able to intervene. this is what we call s special ops come and, and the actual chief has experience in africa, which is significant. [unintelligible] we also have french police cooperation with the local
police, and that has been a broader. that also covers drug trafficking. now, we have strategic implications. we are involved in the feedback-and looping action, reaction with al-qaeda in the islamic maghreb. we have of vulnerability with the lack of compound culture, the number of citizens we have there, and on the side with the money they receive, they can enhance the capacity. our sources estimate that means around 15 million heroes. -- euros. when you think it could actually cost about $500, that as a lot of capacity they cannot find. there is some worrying
situation which to -- situation. we can talk about the situation in northern mali and the french approach is to avoid to crystallize a new land of jihad , like iraq or afghanistan. we choose to [unintelligible] the big thing for us is offstage. if we need to have actable intelligence, which means their wrecked local sources, which is not easy to do -- which means direct local sources, which is not easy to do. i would be surprised if al-qaeda in the islamic maghreb would not try to enhance its global operations by imitating the
actions like multiple bombing attacks, or things like that with a mess of the impact, but could potentially change the format of the western u.s. or french intervention in the field. especially, if that worst case scenario appeals under electorial time in france. thank you. [applause] >> i hope you off on that presentation as fascinating as i did. it was an interesting expos that and what is taking place in france. i found it very instructive. please join me in welcoming andrew mcgregor. he has actually made a huge personal sacrifice, speaking before you today, as he has laryngitis.
so, please bear with him. please keep the rustling of papers down, because he will not be speaking very loud. please join me in welcoming andrew mcgregor. [applause] >> thank you, geoff porter. i do not know how this is going to go, but bear with me as i do this in my best very wide imitation. -- barry white imitation. do we have the sought -- the slides? thank you. january 9, 2011 referendum on social independence will mark either the creation of a new african nation or the beginning of the third sudanese civil war. the north and south of the army in preparation for such conflict. both sides might be expected to
use proxy's or create alliances with neighboring countries, raising the possibility the entire region could be drawn into the conflict. a breakdown in regional security might allow entry into the region of non-state terrorist groups such as al qaeda and its affiliates. the sudan currently possesses an oil reserve estimated at 6 billion barrels, a reduction for about 60% of the north's total revenue, and 98% of the south's revenue stream. the growing the oil industry has funded the rearmament of both north and south, and added a new geopolitical dimension to a potential conflict. china's continued economic growth realized on securing oil supplies from nations like the sudan, supplies that will be hit immediately threatened by a conflict that will be largely
fought in the oil fields of south sudan. the united states is expected to become a player in south sudan could go oil industry, said a development that could only be made possible by southern independence, as current sanctions prevent this. american investment groups are already buying up large tracts of arboriculture will land in south sudan, though it is believed their interest is in untapped oil reserves. oil currently represents nearly 20% of saddam's gdp, so when it's threatened to oil production would represent an immediate -- so an interruption to oil production would represent an immediate loss. neighboring countries would also incur significant economic costs to the loss of trade. the question is can the self afford to go to war?
-- the south afford to go to war? the result to beat the loss of all the element gains made in the last five years, and possibly wide-spread starvation. the south cannot take its oil fields and live happily ever after. the refineries are of located in the north. the only pipeline for export runs through the north on the red sea. it would take many years and hundreds of millions of dollars to change this situation. in today's hyper-sensitive energy market, any disruption to an important oil producer like sudan would have any immediate effect on the price of a barrel of oil, with subsequent costs moving their way up through the economic system. lest we forget, there would also be a terrible loss of life in a renewed conflict. in the second civil war,
roughly two million people lost their lives, with twice as many displaced, many permanently. the failure of sudanese politicians to reach agreement on the citizenship issue will directly effect meant it -- many southerners who had moved to the north in search of employment and education. the ruling national congress party has indicated that these southerners will lose their right to work or receive health care in the north. sudanese -- the sudanese president, still wanted on an international court indictment for war crimes in the dark for has said nothing other than a vote for unity with the acceptable and at other times that he would accept whatever -- whatever the outcome is reached.
the south has made significant strides. i am sorry. they have made significant strides in turning the spla into an army. with south sudan spending 50% of its budget on arms since 2005, the new conflict will look significantly different from those that have gone before. who will or 100 ukrainian-made battle tanks -- over 100 ukrainian-made battle tanks have been made. this preparation has, however, come at a great costs to local populations in the oil-producing areas, which have seen little of the money, while ensuring environmental degradation from on regulated production facilities. this could easily lead to internal struggles within the south.
the 10,000-man the united nations missions in sudan has attempted to shift troops, but it cannot increase the size of the force without getting the on likely permission of khartoum. the u.n. has proven in effect will from government -- preventing government attacks. u.n. peacekeepers have been unable to defend even themselves. we take a massive increase in the size of power of the peacekeeping force to create a buffer zone along the border. independentce in south sudan would boost the independence movement in the are for. -- darfur.
perhaps with this in mind, the president of south sudan has made extensive efforts to identify the opposition groups and hold talks with the most powerful groups, the justice and equality movement which shook the government by launching a raid on the government itself, something previously thought impossible. the dispute over the border region lying along the north/south border also has the potential of sparking a new civil war. hundreds of local residents were killed in clashes in 2008 between forces of the north and south. a separate referendum to be held simultaneously will determine whether abyei joins the north or the south. most of the districts are expected to vote for unification with the south, but the nomadics demand to be
included in the voting. there are few signs the referendum will take place on time. khartoum has said a postponement is necessary, and anger is threatening to create new violence. southern officials now speak of annexing if a referendum cannot be held, but only after making significant financial considerations to khartoum. many have memories of the widespread atrocities during the civil war. complicating the whole issue of war and peace in the nile valley is a growing and deadly serious dispute over the use of the nile waters. the white nile begins in sub- saharan africa, 4,100 miles
south of its outlet to the mediterranean, though much of the water is lost in the massive swamps. more important is the blue nile, which begins in the mountains of ethiopia before joining the white nile in khartoum. unlike egypt, ethiopia enjoys a relatively abundant rain in seizing -- season. in recent years, the rains have become less dependable, and ethiopia is determined to build a huge irrigation system to avoid further famines. they are also in the mist of building dams to make the nation and hydro electric producer. the crown jewel will be larger than the [unintelligible]
>> the egyptians say that these and other projects are like asking the egyptians to abandon their nile valley culture and go and live in the desert. the effort is change -- is based on two unchangeable fact. the population has reached unprecedented numbers, and the land remains confined to a narrow strip. both food and energy supplies are inextricably tied to an undiminished flow of nile water. agriculture represents one-third of egypt's economy, all of it dependent on nile water. rhetoric is growing extremely heated, with the prime minister of ethiopia and warnings egypt that it cannot win a war with ethiopia over the nile waters. the current treaty governing the use of nile waters was signed in 1929, during the british occupation of egypt in the
sudan. under this pact, egypt is entitled to 150 cubic meters of nile water. the other seven countries have spent over 10 years tried to modify this agreement to little avail. a new deal to share the nile waters was signed by ethiopia, kenya, uganda, and tons on yet in may giving the other countries one year to signed on. egypt and sudan have rejected calling on the pact a national security issue, challenging their sacred control of the nile.
toever, egypt's refusal negotiate new terms is not sustainable. besides ethiopia compel massive energy scheme, the sudan is building a new series of dams in nubia with chinese assistance. the egyptians have yet to make up their minds as to whether they want to live in the 21st or the 19th century. a political struggle over oil and water in the region could also resolve -- result in a new wave of proxy warfare. a good example could be found in the resistance army, a violent group of ugandan origins who was based on a retaliation for you gone the's support of the south. a renewed conflict would see
khartoum's intelligence agencies renew ties, and spark a new round of senseless atrocities. al qaeda would also welcome a return to sudan, where they are generally on wanted by any party today, lacking public, official, or even covert support from any group. saddam's -- sudan has been largely effected in -- effective in in prohibiting an outsider return, but a war could bring about new al qaeda sells. a renewed conflict in the sudan would quickly bring in new gondola, ethiopia, and egypt, as
sponsors, or even military partners of one side or another. if you god, especially with an experienced, well-trained -- if you done that, especially with an experienced, -- uganda, with a well-trained army, could contribute. south sudan's president has warned a return to violence on a massive scale if the referendum does not go ahead with scheduled. no amount of military measures will convince most southerners that their future lies in northern sudan. failure to conduct a referendum on time could lead to a unilateral declaration of independence. as the south sudan president's says --si